Compulsory flag pledges. Mandatory flag pledges in public schools were motivated by patriotic fervor in wartime America. The first known mandatory flag pledges were instituted in a number of states during the Spanish–American War. During World War I, many more states instituted mandatory flag pledges with only a few dissents recorded by the American Civil Liberties Union.

1935, June: Position of the Jehovah's Witnesses. On Monday, June 3, 1935, Watch Tower Society president J. F. Rutherford, was interviewed at a Witness convention about "the flag salute by children in school". He told the convention audience that to salute an earthly emblem, ascribing salvation to it, was unfaithfulness to God. Rutherford said that he would not do it."[1] While the matter was not yet established doctrine or written policy of Jehovah's Witnesses, at least some Witness families quickly made a personal conscientious decision on the matter.[2]

1935, September: First refusal by a Jehovah's Witness. In 1935 in Lynn, Massachusetts, a third-grader and Jehovah’s Witness named Carleton Nichols[3] refused to recite the Pledge of Allegiance and was expelled from school.[4] The Nichols incident received widespread media attention, and other Witness students soon followed suit. Rutherford gave a radio address praising Nichols,[5] and schools around the country began expelling Witness students and firing Witness teachers. Jehovah's Witnesses published the booklet Loyalty, making the matter an official doctrine of the faith before the end of 1935. Witnesses hired teachers and set up “Kingdom schools” to continue their children’s education.

The national leadership subsequently decided to make an issue of the forced pledges and asked people to stand up for their right to religious freedom.[6]

Walter Gobitas[7] was a recent convert to the Jehovah's Witnesses. Gobitas was inspired by stories of other Jehovah's Witnesses who challenged the system and suffered for it, and decided to make a stand himself and instructed his children not to pledge allegiance when at school.

Minersville, Pennsylvania was predominantly Roman Catholic and there was significant animosity towards the Jehovah's Witnesses. Tensions were already high before this case arose and many viewed this as one way to get back at the Witnesses. As a result, his children were subjected to teasing, taunting, and attacks from the other kids. For Lillian, this meant giving up her status as class president and losing most of her friends. "When I'd come to school," she said, "they would throw a hail of pebbles and yell things like, 'Here comes Jehovah!' Billy's fifth grade teacher attempted to physically force his arm out of his pocket to make the requisite salute[8]

A local Catholic church started a boycott of the family store and its business dropped off. Because of their eventual expulsion, their father had to pay for them to enroll in a private school, resulting in even more economic hardship[citation needed].

At first the school board was in a quandary because the law did not provide penalties for those who refused to pledge. Finally, though, the school board got permission to punish the Gobitas children and expelled them, without appeal[citation needed].

The case was argued in Philadelphia on 15 February 1938. During the trial, school superintendent Roudabush displayed contempt for the beliefs of the children, stating that he felt they had been "indoctrinated" and that the existence of even a few dissenters would be "demoralizing," leading to widespread disregard for the flag and American values. Four months later District Judge Albert B. Maris found that the board's requirement that the children salute the flag was an unconstitutional violation of their free exercise of religious beliefs.[9]

Within two weeks, the school board unanimously agreed to appeal the decision. Oral arguments in the appeal were made before the Third Circuit of the U.S. Court of Appeals on 9 November 1938. One year later, the three-judge court unanimously affirmed the district court decision.[10]

Despite its two defeats in the lower courts, the school board decided to take its case to the Supreme Court, authorizing its attorney to file a petition for a writ of certiorari, which the Court granted on 4 March 1940.[11]

The Court heard oral arguments on 25 April. Joseph Rutherford, president of the Watch Tower Society, and himself a lawyer, took over the defense, assisted by the new head of the religious group's Legal Department, Hayden Covington.[12] The ACLU and the Committee on the Bill of Rights of the American Bar Association filed amicus curiae briefs.[12]

The Court's decision was nearly unanimous; only Justice Harlan F. Stone dissented. In an 8-to-1 decision, the Court upheld the mandatory flag salute, declining to make itself "the school board for the country."

Justice Felix Frankfurter wrote the majority decision; in doing so, he relied primarily on the "secular regulation" rule, which weighs the secular purpose of a nonreligious government regulation against the religious practice it makes illegal or otherwise burdens the exercise of religion. He identified the Pennsylvania flag-salute requirement as an intrinsically secular policy enacted to encourage patriotism among school children.

Frankfurter wrote that the school district's interest in creating national unity was enough to allow them to require students to salute the flag. According to Frankfurter, the nation needed loyalty and the unity of all the people. Since saluting the flag was a primary means of achieving this legitimate goal, an issue of national importance was at stake.

The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values".

National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression opinion through handbills.

Weighing the circumstances in this case, he argued that the social need for conformity with the requirement was greater than the individual liberty claims of the Jehovah's Witnesses. He emphasized that

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs

Frankfurter further wrote that the recitation of a pledge advanced the cause of patriotism in the United States. He said the country's foundation as a free society depends upon building sentimental ties.

The flag, the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the common schools an attachment to the institutions of their country."[13]

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them...The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say...

On June 9, a mob of 2,500 burned the Kingdom Hall in Kennebunkport, Maine.[14] On June 16, Litchfield, Illinois police jailed all of that town's sixty Witnesses, ostensibly protecting them from their neighbors. On June 18, townspeople in Rawlins, Wyoming brutally beat five Witnesses; on June 22, the people of Parco, Wyoming tarred and feathered another.

American Legion posts harassed Witnesses nationwide. For example, on June 27, members of the American Legion forced Witnesses from a trailer camp in Jackson, Mississippi and escorted them across state lines to Louisiana, where they were "...passed from county to county, finally winding up in the vicinity of Dallas, Texas."[citation needed] A Nebraska Witness was castrated[citation needed]. Little Rock Witnesses were beaten with pipes and screwdrivers[citation needed]. West Virginia Witnesses were forced to drink castor oil and then tied together with police department rope[citation needed]. Witnesses were jailed for sedition, jailed for distributing literature, jailed for holding a parade, jailed for canvassing without a license[citation needed].

The American Civil Liberties Union reported to the Justice Department that nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. One Southern sheriff told a reporter why Witnesses were being run out of town: "They're traitors; the Supreme Court says so. Ain't you heard?"[citation needed]

First Lady Eleanor Roosevelt appealed publicly for calm, while newspaper editorials and the American legal community condemned the Gobitis decision as a blow to liberty. On June 8, 1942, Supreme Court Justices Black, Douglas and Murphy stated in their opinion on Jones v. City Of Opelika that although they concurred with the majority in the Gobitis case, they now believed that case had been wrongly decided.[15]

Partly because of the violent reaction to its decision, including the lynching of Jehovah Witnesses according to Shawn Francis Peters in her book Judging Jehovah’s Witnesses: Religious Persecution And the Dawn of the Rights Revolution, the Supreme Court reversed itself a few years later. On 14 June 1943 (Flag Day), the court handed down West Virginia State Board of Education v. Barnette. Justice Robert Jackson echoed Justice Stone's dissent when he wrote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion".[16]

Justice Frank Murphy considered the reversal to be an important personal landmark.[17]

The elevation of Harlan Fiske Stone to Chief Justice, and the appointment of two new members to the Supreme Court, were also factors in the Court's reversal of policy.[18]

The active persecution of Jehovah's Witnesses abated somewhat, although thousands were arrested during World War II for seeking religious exemption from military service. They were accused of being unpatriotic, even being Nazi sympathizers.[19]

^Those who heeded this call and challenged the practice of pledging the flag were accused of working with or being duped by German sympathizers. Ironically, Jehovah's Witnesses in Germany under Hitler rule were sentenced to concentration camps for the same reason, namely the denial to salute national symbols. A further irony lay in the fact that, at the time, many flag pledges were performed not with the right hand over the heart as they are today, but instead with an outstretched right hand, a gesture which has now become associated with the "Sieg Heil" salute of the Nazis.

^The name was misspelled "Gobitis" in the Court's decision, but was in fact "Gobitas."